1. The first point urged in this second appeal is that the respondent was not entitled to appeal to the District Court against the finding of the Subordinate Judge, that there had been no previous partition between the parties as alleged by the defendants. The question arises under the following circumstances. The appellant having sued for partition and the respondent in answer having raised the plea that there had been a previous partition, the Subordinate Judge found on that question in favour of the appellant and referred the further matters in the suit, such as the making of a partition, to certain persons appointed as Commissioners. The Subordinate Judge adopted their report and passed a final decree. The respondent appealed not only against the decretal directions but also against the Subordinate Judge's preliminary finding. It is contended that that finding amounted either to a decree or order within the meaning of the definitions of those terms in the Code of Civil Procedure. We agree, however, with the reasoning and conclusion of the judgments of Prinsep J. and Banerjee J. in Khadem Hossein v. Emdad Hossein ILR (1901) Cal. 758.
2. Then it is contended that we must not accept the finding of the lower appellate Court in the present case, because that Court has dealt with two documents in the case, Exs. 52 and 54, in a manner contrary to the pleadings in the Court of first instance. These two documents were put in by the plaintiff as containing the admissions by one of the present respondents. The Subordinate Judge dealt with them as such admissions and relied upon them very strongly in support of his findings in favour of the plaintiff.
3. In appeal, the appellate Court has made out a new case altogether which did not form part of the pleadings in the first Court. The appellate Court admits that these documents contain admissions which as they stand weigh strongly against the present respondent; but that Court construes those admissions to have been intended as mere sarcasm-in other words, that they mean something different from what the words obviously convey, according to their natural interpretation, That was never the case suggested in the Court of first instance. If the respondent intended to explain away the admissions by the defence that the letters which contained them were written in a vein of irony but not seriously, he ought to have put forward that case in his own examination-in-chief and in the cross-examination of the Appellant and his witnesses. It was not open to the lower appellate Court to make out a new case for the first time in appeal contrary to the pleadings in the first Court.
4. Then there is another error of law which vitiates the findings of the lower appellate Court. That Court deals with these letters as if the case of plaintiff was that they estopped the present respondents. But there was no case of estoppel raised by the plaintiff in the first Court.
5. On these grounds we must ask the District Judge to find upon the first two issues raised by Mr. Gharpure in his judgment.
6. Findings to be returned within two months.
7. I should like to add that an answer to the first point is, in my opinion, furnished by the circumstances of the case itself. It is alleged that there was a decree, dated the 31st July 1906, and consequently there should have been an appeal. Now, as a matter of fact there was no decree, of that date, though there was a judgment. It is argued that there ought to have been a decree. But the judgment did not decide the suit, therefore, there could not properly have been a decree. How plain this is, is shown by the proceedings as a whole. The judgment dated the 31st July determined (by finding on a particular issue), that the plaintiff was entitled to a certain share of two houses. Had the decree followed that judgment it would have been that the plaintiff must get such share in the two houses ; but the subsequent proceedings led to the conclusion that the houses could not be partitioned ; so when the suit was decided he got something else.